G.R. No.

215847

GOV. EXEQUIEL B. JAVIER, Petitioner,

vs.
COMMISSION ON ELECTIONS, CORNELIO P. ALDON, and RAYMUNDO T. ROQUERO, Respondents.

DECISION

BRION, J.:

This is a petition for certiorari under Rule 65 in relation to Rule 64 of the Rules of Court, filed to challenge the
January 12, 2015 per curiam order of the Commission on Elections (COMELEC/The Commission) en
banc in SPA No. 13-254 (DC).  The Commission granted the petition to disqualify the petitioner Exequiel Javier
1

and to annul his proclamation as the duly elected governor of Antique.

THE ANTECEDENTS

On December 3, 1985, the Batasang Pambansa enacted the Omnibus Election Code (Election Code).  Section 2

261(d) and (e) of this Code prescribe the following elements of coercion as an election offense:

Section 261. Prohibited Acts. - The following shall be guilty of an election offense: x x x

(d) Coercion of subordinates. -

(1) Any public officer, or any officer of any public or private corporation or association, or any head,
superior, or administrator of any religious organization, or any employer or landowner who coerces or
intimidates or compels, or in any manner influence, directly or indirectly, any of his
subordinates or members or parishioners or employees or house helpers, tenants, overseers, farm
helpers, tillers, or lease holders to aid, campaign or vote for or against any candidate or any
aspirant for the nomination or selection of candidates.

(2) Any public officer or any officer of any commercial, industrial, agricultural, economic or social
enterprise or public or private corporation or association, or any head, superior or administrator of any
religious organization, or any employer or landowner who dismisses or threatens to dismiss, punishes
or threatens to punish by reducing his salary, wage or compensation, or by demotion,
transfer, suspension, separation, excommunication, ejectment, or causing him annoyance in the
performance of his job or in his membership, any subordinate member or affiliate, parishioner, employee
or house helper, tenant, overseer, farm helper, tiller, or lease holder, for disobeying or not complying with
any of the acts ordered by the former to aid, campaign or vote for or against any candidate, or any
aspirant for the nomination or selection of candidates.

(e) Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion. - Any person who, directly
or indirectly, threatens, intimidates or actually causes, inflicts or produces any violence, injury, punishment,
damage, loss or disadvantage upon any person or persons or that of the immediate members of his family, his
honor or property, or uses any fraudulent device or scheme to compel or induce the registration or refraining from
registration of any voter, or the participation in a campaign or refraining or desistance from any campaign, or the
casting of any vote or omission to vote, or any promise of such registration, campaign, vote, or omission
therefrom. (emphases supplied)

Coercion, as an election offense, is punishable by imprisonment of not less than one year but not more than six
years.  Notably, Section 68 of the Election Code provides that the Commission may administratively disqualify a
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candidate who violates Section 261(d) or (e).

On February 20, 1995, Congress enacted Republic Act No. 7890 amending the definition of Grave Coercion
under the Revised Penal Code.  It increased the penalty for coercion committed in violation of a person’s right to
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suffrage to prision mayor. Further, Section 3 of R.A. 7890 expressly repealed Section 26, paragraphs (d)(1) and
(2) of the Election Code.

On April 3, 2012, COMELEC issued Resolution No. 9385  fixing the calendar of activities for the May 2013
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elections. The resolution set the election period from January 13, 2013 until June 12, 2013.

On September 3, 2012, Valderrama Municipal Vice-Mayor Christopher B. Maguad filed an administrative

complaint for Gross Misconduct/Dereliction of Duty and Abuse of Authority against Valderrama Mayor Mary
Joyce U. Roquero (Mayor Roquero). This complaint was docketed as Administrative Case No. 05-2012.

On November 9, 2012, the Sangguniang Panlalawigan (SP) issued Resolution No. 291-2012 recommending to

Antique Governor Exequiel Javier (Gov. Javier) the preventive suspension of Mayor Roquero.
On November 21, 2012, Mayor Roquero filed a petition for certiorari and prohibition with prayer for the issuance
of a temporary restraining order (TRO) before the Regional Trial Court (RTC), Branch 12, Antique, against Gov.
Javier and the members of the SP to restrain them from proceeding with Administrative Case No. 05-2012. The
petition was docketed as Special Civil Action No. 12-11-86.

The case was re-raffled to the RTC, Branch 11 which issued a writ of preliminary injunction.

Gov. Javier, Vice-Governor Dimamay, and the members of the SP filed a petition for certiorari with urgent prayer
for TRO and preliminary injunction before the CA, docketed as CA-G.R. SP-07307.

On December 18, 2012, COMELEC issued Resolution No. 9581  prohibiting any public official from suspending
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any elective provincial, city, municipal, or barangay officer during the election period for the May 13, 2013
elections. This resolution implements Section 261 (x)  of the Election Code.
7

On January 15, 2013, the CA issued a TRO in CA-G.R. SP-07307.

On January 16, 2013, the RTC, Branch 11 promulgated its judgment granting certiorari and prohibition. It ordered
the SP to cease and desist from further proceeding with Administrative Case No. 05-2012. It likewise ordered
Gov. Javier to refrain from implementing SP Resolution No. 291-2012 and from preventively suspending Mayor
Roquero.

On January 23, 2013, Gov. Javier issued Executive Order No. 003, S. 2013, preventively suspending Mayor
Roquero for thirty (30) days.

On February 7, 2013, the SP of Antique issued a decision finding Mayor Roquero guilty of Grave Misconduct in
relation with Section 3(e) of R. A. 3019, the Anti-Graft and Corrupt Practices Act, and Grave Abuse of
Authority in relation with Section 5(e) of R.A. No. 6713. The SP suspended her for four (4) months.

Mayor Roquero filed an Election Offense complaint against Gov. Javier for violating Section 261(x) of the Election
Code. The case was filed before the COMELEC Law Department and docketed as Election Offense Case
(EOC) No. 13-025.

Meanwhile (or on March 15, 2013), the CA granted the writ of preliminary injunction filed by Gov. Javier, et al., in
CA-G.R. SP-07307. It enjoined Judge Nery Duremdes of the RTC, Branch 11 from conducting further
proceedings in SPL Civil Action No. 12-11-86.

On March 22, 2013, private respondents Cornelio P. Aldon (Aldon) and Raymundo T. Roquero (Roquero) also
filed a petition for disqualification before the Commission against Gov. Javier, Vice-Governor Rosie A. Dimamay,
and the other members of the SP. The case was docketed as COMELEC Special Action (SPA) No. 13-254
(DC.)

Aldon and Roquero sought to disqualify Gov. Javier and the other incumbent officials from running in the 2013
elections on the ground that the latter committed the election offenses of Coercion of Subordinates [Sec.
261(d)] and Threats, Intimidation, Terrorism x x x or Other Forms of Coercion [Sec. 261(e)] by suspending
Mayor Roquero. They alleged that the suspension was political harassment calculated to intimidate the Roqueros
into backing out of the 2013 elections.8

On April 29, 2013, the Clerk of the Commission conducted a conference hearing between the parties.

On April 30, 2013, Gov. Javier (together with the SP Members) filed a motion to dismiss with answer ex
abundante ad cautelam.

After the May 13, 2013 Elections, only Gov. Javier and SP Members Tobias M. Javier, Edgar D. Denosta,
Teopisto C. Estaris, Jr., and Victor R. Condez were proclaimed winners. Hence, the Commission considered the
disqualification cases against the losing candidates moot.

On October 3, 2014, the COMELEC Second Division issued a resolution in SPA No. 13-254 (DC) disqualifying
Gov. Javier and annulling his proclamation as the Governor of Antique. The resolution was penned by
Commissioner Elias R. Yusoph.

The COMELEC held that the preventive suspension of Mayor Roquero under Executive Order No. 003 violated
the election period ban because it was not for the purpose of applying the Anti-Graft and Corrupt Practices Act. It
also considered the Commission’s findings in EOC No. 13-025 that there was substantial evidence showing that
Gov. Javier acted in bad faith when he suspended Mayor Roquero as a form of punishment for opposing him. 9
The COMELEC ruled that Gov. Javier’s act of preventively suspending Mayor Roquero during the election period
ban fell within the contemplation of Section 261(d) of the Election Code, which is a ground for disqualification
under Section 68. It held that while Section 261(d) of the Election Code was repealed by Republic Act No. 7890,
it did not remove coercion "as a ground per se for disqualification under [Section] 68." In fact, R.A. 7890 made
Coercion (an election offense) a felony with a higher penalty.  The COMELEC added that the general repealing
10

clause of R.A. No. 7890 cannot impliedly repeal Section 68 because the latter was "not absolutely and
irreconcilably incompatible with Article 286."
11

Commissioner Luie Tito F. Guia dissented from the resolution. Commissioner Guia reasoned that the legal basis
to dismiss Gov. Javier no longer exists because Section 3 of Republic Act No. 7890 had repealed Section 261(d)
of the Election Code. Commissioner Arthur D. Lim took no part in the vote because he did not participate in the
deliberations.

With the votes tied at 1-1-1 (one voted to grant, one dissenting, and one not participating), the case failed to
obtain the necessary majority. Consequently on October 14, 2014, the COMELEC Second Division issued an
order elevating the case to the en banc for its disposition. 12

The Commission en banc agreed, as a matter of internal arrangement, to submit their respective opinions
explaining their respective votes or their concurrence with either Commissioner Yusoph or Commissioner Guia.

Three (3) Commissioners concurred with Commissioner Yusoph: Chairman Sixto Brillantes, Jr., Commissioner
Lucenito Tagle, and Commissioner Arthur Lim. Commissioner Christian Robert Lim joined Commissioner Guia’s
dissent. Commissioner Al A. Parreño did not participate in the vote as he was away on official business. Thus,
the vote was 4-2-1 in favor of disqualification; in a per curiam order promulgated on January 12, 2015, the
Commission en banc disqualified Gov. Javier and annulled his proclamation as the governor of Antique.

On January 20, 2015, Gov. Javier filed the present petition for certiorari under Rule 65 in relation with Rule 64 of
the Rules of Court.

THE PETITION

The petitioner argues that the Commission en banc committed grave abuse of discretion because: (1) its January
12, 2015 order was arrived at on the basis of an "internal arrangement; and (2) the order did not obtain a majority
vote because Commissioner Arthur Lim should not have been allowed to participate.

The petitioner also asserts that the Commission erred in ruling that R.A. 7890 did not remove Section 261(d) of
the Election Code as a ground for administrative disqualification. Finally, the petitioner maintains that the
Commission unconstitutionally set the Election Period for the May 13, 2013 elections in violation of Article IX-C,
Section 9 of the Constitution, Sec. 62 (c) of the Local Government Code, and Section 8 of Republic Act No.
7056.13

In its comment on the petition, COMELEC, through the Office of the Solicitor General (OSG), counters that it did
not abuse its discretion in issuing the January 12, 2015 order disqualifying Gov. Javier. The Commission insists
that the procedure observed during the proceedings was not infirm and that there was no legal impediment for
Commissioner Arthur Lim to participate in the en banc vote.

On the alleged errors of law, the Commission insists that there was legal basis to disqualify Gov. Javier under
both Sections 261 (d) and (e) of the Election Code; the repeal of Section 261(d) by R.A. 7890 did not ipso
facto remove coercion as a ground for disqualification under Section 68 of the Election Code. It added that
Section 261(e), on the other hand, has not been repealed, either expressly or impliedly.

Finally, the Commission asserts that COMELEC Resolution No. 9581 fixing the date of the election period is
expressly authorized by Article IX, Section 9 of the Constitution and Section 8 of Republic Act No. 7056.

Based on these submissions, the following issues now confront the Court:

I.

Whether the Commission gravely abused its discretion when it issued Resolution No. 9581 fixing the 2013
election period from January 13, 2013 until June 12, 2013, for the purpose of determining administrative and
criminal liability for election offenses.

II.

Whether the Commission erred in ruling that R.A. No. 7890 did not remove coercion as a ground for
disqualification under Section 68 of the Election Code.
 III.

Whether the Commission en banc committed grave abuse of discretion in issuing its Order dated January 12,
2015, disqualifying Gov. Javier and annulling his proclamation as the governor of Antique.

OUR RULING:

After due consideration, we resolve to grant the petition.

The COMELEC is expressly authorized to fix a different date of the election period.

The petitioner contends that the election period for the reckoning of administrative and criminal liabilities under
election laws should always be the same-90 days before and 30 days after an election-fixed in Article IX-C,
Section 9 of the Constitution and Section 8 of Republic Act No. 7056.  He argues that the Commission’s authority
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to fix the pre-election period refers only to the period needed to properly administer and conduct orderly
elections. The petitioner argues that by extending the period for incurring criminal liability beyond the 90-day
period, the Commission encroached on the legislature’s prerogative to impute criminal and administrative liability
on mala prohibita acts. Therefore, COMELEC Resolution Nos. 9385 and 9581 were issued ultra vires.

We do not find this argument meritorious.

No less than the Constitution authorizes the Commission to fix the dates of the election period. Article IX-C,
Section 9 provides:

Section 9. Unless otherwise fixed by the Commission in special cases, the election period shall commence
ninety days before the day of election and shall end thirty days thereafter. 15

Congress, through the Election Code, explicitly recognizes this authority:

Sec. 3. Election and campaign periods. – Unless otherwise fixed in special cases by the Commission on
Elections, which hereinafter shall be referred to as the Commission, the election period shall commence ninety
days before the day of the election and shall end thirty days thereafter.  (emphases supplied)
16

Evidently, the 120-day period is merely the default election period. The Commission is not precluded from fixing
the length and the starting date of the election period to ensure free, orderly, honest, peaceful, and credible
elections. This is not merely a statutory but a constitutionally granted power of the Commission.

Contrary to the petitioner’s contention, the Commission’s act of fixing the election period does not amount to an
encroachment on legislative prerogative. The Commission did not prescribe or define the elements of election
offenses. Congress already defined them through the Omnibus Election Code, the Fair Elections Act, and other
pertinent election laws.

As defined by Congress, some election offenses and prohibited acts can only be committed during the election
period. An element of these offenses (i.e., that it be committed during the election period) is variable, as election
periods are not affixed to a specific and permanent date. Nevertheless, the definition of the offense is already
complete. By fixing the date of the election period, the Commission did not change what the offense is or how it is
committed. There is thus no intrusion into the legislative sphere.

There is also no merit in the petitioner’s argument that the extended election period only applies to pre-election
activities other than the determination of administrative or criminal liability for violating election laws. Neither the
law nor the Constitution authorizes the use of two distinct election periods for the same election. The law does
not distinguish between election offenses and other pre-election activities in terms of the applicable election
period. Where the law does not distinguish, neither should this Court.

The Alleged Lack of Due Process

We find the petitioner’s claim – that the Commission committed grave abuse of discretion since there was no
preliminary investigation as required under Section 265 of the Omnibus Election Code – to be misplaced. 17

SPA No. 13-254 was an administrative proceeding for disqualification and not a criminal prosecution of an
election offense. The due process requirements and the procedures for these are not the same. Section 265 of
the Election Code only applies to criminal prosecutions. Disqualification cases are summary in nature and
governed by Rule 25 of the COMELEC Rules of Procedure.

There is likewise no merit in the petitioner’s allegation that he was denied due process because the Commission
adjudicated the issue without conducting any subsequent hearings and without requiring the submission of
position papers or memoranda, notarized witness affidavits, or other documentary evidence aside from the
annexes included in the petition and the answer.

Administrative due process cannot be fully equated with due process in its strict judicial sense.  A formal hearing
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is not always necessary and the observance of technical rules of procedure is not strictly applied in administrative
proceedings.  The essence of administrative due process is the right to be heard and to be given an opportunity
19

to explain one’s side.  Where the Commission hears both sides and considers their contentions, the
20

requirements of administrative due process are complied with.

As we held in Lanot v. Commission on Elections: 21

The electoral aspect of a disqualification case determines whether the offender should be disqualified from being
a candidate or from holding office. Proceedings are summary in character and require only clear preponderance
of evidence. An erring candidate may be disqualified even without prior determination of probable cause in a
preliminary investigation. The electoral aspect may proceed independently of the criminal aspect, and vice versa.

The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate
for an election offense. The prosecutor is the COMELEC, through its Law Department, which determines whether
probable cause exists. If there is probable cause, the COMELEC, through its Law Department, files the criminal
information before the proper court. Proceedings before the proper court demand a full-blown hearing and require
proof beyond reasonable doubt to convict. A criminal conviction shall result in the disqualification of the offender,
which may even include disqualification from holding a future public office.

Commissioner Arthur Lim’s Participation in the En Banc Voting

The petitioner further argues that the Commission committed grave abuse of discretion by allowing
Commissioner Arthur D. Lim to participate in the proceedings before the Commission en banc. The petitioner
maintains that because Commissioner Arthur Lim took no part in the proceedings before the COMELEC Second
Division, then he should have inhibited from the en banc proceedings pursuant to the ruling in Estrella v.
COMELEC.  If we disregard Commissioner Arthur Lim’s vote, then the Commission would have failed to attain
22

the necessary majority vote of all the members of the Commission.

The petitioner’s reliance on Estrella is misplaced because the facts of this case are different from those of the
present case. Estrella involved two related election cases between the same parties: an election protest and an
action for certiorari. One party moved for Commissioner Lantion’s inhibition which the Commission denied.
However, Commissioner Lantion later inhibited himself from the certiorari proceeding and was substituted by
another Commissioner.  The substitution order was also adopted in the election protest case. When the election
23

protest was elevated to the COMELEC en banc, Commissioner Lantion participated in the deliberations and
voted despite his prior inhibition. This Court granted certiorari and held that Commissioner Lantion’s piecemeal
voluntary inhibition was illegal and unethical.

In the present case, Commissioner Arthur Lim did not inhibit from the proceedings. If the Commissioner had
inhibited, there would have been a need to replace him pursuant to Rule 3, Section 6 of the COMELEC Rules of
Procedure  (as what happened in Estrella where there was an issuance of an order designating Commissioner
24

Borra as Commissioner Lantion’s substitute). Commissioner Arthur Lim only abstained from voting; he did not
participate in the deliberations. When the Commission en banc, as a matter of internal arrangement, agreed
among themselves to submit their own opinion explaining their respective vote or merely their concurrence with
either Commissioner Elias R. Yusoph or Commissioner Luie Tito F. Guia’s position on the matter, no legal or
ethical impediment existed preventing him (Commissioner Arthur Lim) from subsequently participating in the
deliberations and from casting his vote.

COMELEC’s Internal Arrangement

The petitioner also maintains that the Commission gravely abused its discretion when it set aside its own rules
and resolved the case through an "internal arrangement." He submits that the Commission should have waited
for the assigned ponente to write an opinion before agreeing to vote based on the positions of Commissioner
Yusoph and Commissioner Guia. The petitioner also claims that the assailed Order is a "midnight decision" and
cites the absence of a promulgation date on the front page and of a certification signed by the Chairman as
procedural infirmities.

The petitioner clearly refers to Rule 18 of the COMELEC Rules of Procedure which states:

Part IV
Rule 18 – Decisions

Sec. 1 Procedure in Making Decisions. – The conclusions of the Commission in any case submitted to it for
decision en banc or in Division shall be reached in consultation before the case is assigned by raffle to a
Member for the writing of the opinion of the Commission or the Division and a certification to this effect signed by
the Chairman or the Presiding Commissioner, as the case may be, shall be incorporated in the decision. Any
member who took no part, dissented, or abstained from a decision or resolution must state the reason therefor.

Every decision shall express therein clearly and distinctly the facts and the law on which it is
based. (emphasis supplied)

To our mind, the essence of this provision is: (1) that decisions of the Commission, whether in Division or en
banc, must be reached in consultation; and (2) that the decisions must state their factual and legal bases.
Moreover, Rule 18, Section 1 must be read together with the other provisions of the COMELEC Rules of
Procedure, particularly the following related portions:

Rule 1 – Introductory Provisions

Sec. 3. Construction – These rules shall be liberally construed in order to promote the effective and efficient
implementation of the objectives of ensuring the holding of free, orderly, honest, peaceful and credible elections
and to achieve just, expeditious and inexpensive determination and disposition of every action and proceeding
brought before the Commission.

Sec. 4. Suspension of the Rules – In the interest of justice and in order to obtain speedy disposition of all
matters pending before the Commission, these rules or any portion thereof may be suspended by the
Commission.

The COMELEC Rules specifically authorize the Commission to suspend the strict application of its rules in the
interest of justice and the speedy disposition of cases. In this case, the Commission suspended Rule 18, Section
1. The Commission, as a body, dispensed with the preparation of another ponencia and opted to vote on the
legal positions of Commissioners Yusoph and Guia. Nevertheless, the decision was evidently reached through
consultation. Then Chairman Sixto Brillantes, Jr., Commissioner Lucenito Tagle, and Commissioner Arthur Lim
concurred with Commissioner Yusoph. Commissioner Christian Robert Lim joined Commissioner Guia’s dissent.
Chairman Brillantes, Jr. and Commissioner Arthur Lim also wrote separate concurring opinions. The Court does
not see any arbitrariness or infirmity in this internal arrangement that would have deprived the petitioner of due
process.

Moreover, the Commission resorted to this arrangement because, as the petitioner pointed out, three
Commissioners were retiring soon. There was a need to resolve the cases because the impending vacancies
would have resulted in further delay. Contrary to the petitioner’s insinuations, "midnight decisions" are not illegal.
Judges and other quasi-judicial officers cannot sit back, relax, and refuse to do their work just because they are
nearing retirement or are near the end of their term. As civil servants, they are expected to diligently carry out
their duties until their separation from service. Thus, the Commission’s suspension of its rules and use of an
internal arrangement to expedite its internal proceedings is not at all unusual in collegial bodies. We note that the
vote was divided and dissents were filed, thereby indicating the absence of any malicious departure from the
usual procedures in arriving at the Commission’s ruling on the case.

Absence of a Promulgated Date and Failure to Serve Advance Copy

With respect to the absence of a promulgation date on the first page of the assailed order, this Court directs the
petitioner’s attention to the last page stating that the Order was "Given this 12th day of January 2015, Manila,
Philippines.”  Promulgation is the process by which a decision is published, officially announced, made known to
25

the public, or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel.  The
26

order was evidently promulgated on January 12, 2015.

The Commission does not deny that it failed to serve an advance copy of the order to the petitioner as required
under Rule 18, Section 5  of its Rules. But as we previously held in the cases of Lindo v.
27

COMELEC  and Pimping v. COMELEC,  this kind of procedural lapse does not affect the validity of the order and
28 29

is insufficient to warrant the grant of a writ of certiorari in the absence of any grave abuse of discretion
prejudicing the rights of the parties.

Repeal of Section 261 (d) of Batas Pambansa Blg. 881 by Republic Act No. 7890

No less than the Constitution empowers the Commission to decide all questions affecting elections except those
involving the right to vote.  It is the sole arbiter of all issues involving elections. Hence, unless tainted with grave
30

abuse of discretion, simple errors of judgment committed by COMELEC cannot be reviewed even by this Court. 31

An error of judgment is one that the court may commit in the exercise of its jurisdiction;  they only involve errors
32

in the court or tribunal’s appreciation of the facts and the law.  An error of jurisdiction is one where the act
33

complained of was issued by the court without or in excess of its jurisdiction, or with grave abuse of discretion
tantamount to lack or excess of jurisdiction. 34
A review of the October 3, 2014 COMELEC Second Division resolution (penned by Commissioner Yusoph),
however, showed that the main thrust of this resolution ‒to which four Commissioners concurred in when the
case was elevated to the en banc – is faulty.  It considered the repeal of Section 261(d) by R.A. No.7890 to be
35

an implied one, which is contrary to the wordings of R.A. 7890.

For clarity, we reproduce the pertinent provisions of R.A. No. 7890, thus:

SECTION 1. Article 286, Section Three, Chapter Two, Title Nine of Act No. 3815, as amended, is hereby further
amended to read as follows:

“ART. 286. Grave Coercions. – The penalty of prision correccional and a fine not exceeding Six thousand pesos
shall be imposed upon any person who, without any authority of law, shall, by means of violence, threats or
intimidation, prevent another from doing something not prohibited by law, or compel him to do something against
his will, whether it be right or wrong.

“If the coercion be committed in violation of the exercise of the right of suffrage, or for the purpose of compelling
another to perform any religious act, to prevent him from exercising such right or from so doing such act, the
penalty next higher in degree shall be imposed."

SEC. 2. Section 261, Paragraphs (d)(1) and (2), Article XXII of Batas Pambansa Blg. 881 is hereby
repealed.

SEC. 3. All other election laws, decrees, executive orders rules and regulations, or parts thereof inconsistent with
the provisions of this Act are hereby repealed.

xxxx

A repeal may be express or implied.  An express repeal is one wherein a statute declares, usually in its repealing
36

clause, that a particular and specific law, identified by its number or title, is repealed.  An implied repeal, on the
37

other hand, transpires when a substantial conflict exists between the new and the prior laws. In the absence of an
express repeal, a subsequent law cannot be construed as repealing a prior law unless an irreconcilable
inconsistency and repugnancy exist in the terms of the new and the old laws. 38

In the present case, it is clear that R.A. No. 7890 expressly repealed Section 261, paragraphs (d)(1) and (2) of
the Omnibus Election Code. The COMELEC Second Division’s October 3, 2014 resolution, however, treated this
repeal as merely an implied one. Commissioner Yusoph reasoned out as follows:

Moreover, the general repealing clause in Section 3 of RA 7890 cannot impliedly repeal Section 68 because
the latter is not absolutely and irreconcilably incompatible with Article 286, as amended by RA 7890. Meaning, a
case for disqualification due to coercion under Section 68 can very well stand apart from the criminal case for
coercion under Article 286, as amended. This is so because Section 68 involves an administrative proceeding
intended to disqualify a candidate whereas Article 286, supra, involves a criminal proceeding intended to penalize
coercion. Both laws, therefore, can be given effect without nullifying the other, hence the inapplicability of implied
repeal.

To firm up our stance against implied repeal of coercion as a ground for disqualification, the following
pronouncements of the Supreme Court are guiding:

“Implied repeal by irreconcilable inconsistency takes place when the two statutes cover the same subject matter;
they are so clearly inconsistent and incompatible with each other that they cannot be reconciled or harmonized;
and both cannot be given effect, that is, that one law cannot be enforced without nullifying the other."

“Well-settled is the rule is statutory construction that implied repeals are disfavored. In order to effect a repeal by
implication, the latter statute must be so irreconcilably inconsistent and repugnant with the existing law that they
cannot be made to reconcile and stand together. The clearest case possible must be made before the inference
of implied repeal may be drawn, for inconsistency is never presumed. x x x x" 39

We point out that this resolution and the dissenting opinion of Commissioner Guia became the basis of the
internal arrangement reached upon by the Commission en banc whereby the commissioners agreed to submit
their respective opinions explaining their votes or their concurrence with either Commissioner Yusoph or Guia.

As earlier stated, the vote was 4-2-1 in favor of disqualification; in a per curiam order promulgated on January 12,
2015, the Commission en banc disqualified Gov. Javier and annulled his proclamation as the governor of
Antique. Chairman Brillantes and Commissioner Arthur Lim wrote their own opinions concurring with the position
of Commissioner Yusoph, while Commissioner Tagle submitted his vote concurring with the opinions of
Commissioner Yusoph and Chairman Brillantes.
In his Separate Opinion, Chairman Brillantes agreed with Commissioner Yusoph that the repeal of Section 261(d)
by R.A. No. 7890 was merely implied, and made the following disquisition:

xxxx

The Supreme Court, in a long line of cases, has constantly disfavored and struck down the use of repeal by
implication. Pursuant to jurisprudence, well entrenched is the rule that an implied repeal is disfavored. The
apparently conflicting provisions of a law or two laws should be harmonized as much as possible, so that each
shall be effective. For a law to operate to repeal another law, the two laws must actually be inconsistent. The
former must be so repugnant as to be irreconcilable with the latter act. Stated plainly, a petition for disqualification
on the ground of coercion shall be taken differently and distinctly from coercion punishable under the RPC for the
two can very well stand independently from each other. x x x Therefore, unless proven that the two are
inconsistent and would render futile the application and enforcement of the other, only then that a repeal by
implication will be preferred. x x x x
40

A law that has been expressly repealed ceases to exist and becomes inoperative from the moment the repealing
law becomes effective.  The discussion on implied repeals by the Yusoph resolution, (and the concurring opinion
41

of Chairman Brillantes, Jr.), including the concomitant discussions on the absence of irreconcilable provisions
between the two laws, were thus misplaced. The harmonization of laws can only be had when the repeal is
implied, not when it is express, as in this case.

The COMELEC’s reasoning that coercion remains to be a ground for disqualification under Section 68 of the
Election Code despite the passage of R.A. No. 7890 is erroneous. To the point of our being repetitive, R.A. No.
7890 expressly repealed Section 261 d(1) and (2) of Batas Pambansa Blg. 881, rendering these provisions
inoperative. The effect of this repeal is to remove Section 261(d) from among those listed as ground for
disqualification under Section 68 of the Omnibus Election Code.

In his Memorandum/Concurring Opinion, Commissioner Arthur Lim stated that the petition for disqualification is
anchored not only on violation of Section 261 (d), but also on the violation of Section 261(e) in relation to Section
68 of the OEC. We point out, however, that the COMELEC Second Division’s October 3, 2014 resolution in SPA
No. 13-254 (disqualifying Gov. Javier and annulling his proclamation as the Governor of Antique) was premised
solely on violation of Section 261(d) of the OEC; it did not find that Gov. Javier – even by substantial evidence -
violated the provisions of Section 261(e). For clarity and accuracy, we quote the pertinent portions of the
COMELEC’s (Second Division) October 3, 2014 resolution:

Ineluctably, the act of Gov. Javier in preventively suspending Mayor Roquero during the Election period ban falls
within the contemplation of Section 261(d) of the Election Code which is a ground for disqualification under
Section 68, Election Code. That is, Gov. Javier issued Executive Order No. 003 suspending Mayor Roquero to
coerce, intimidate, compel, or influence the latter to collaborate with or campaign for the former, or to punish the
latter for having manifested political opposition against the former. For that, he must be disqualified. 42

With the express repeal of Section 261(d), the basis for disqualifying Javier no longer existed. As we held
in Jalosjos, Jr. v. Commission on Elections,  [t]he jurisdiction of the COMELEC to disqualify candidates is limited
43

to those enumerated in Section 68 of the Omnibus Election Code. All other election offenses are beyond the
ambit of COMELEC jurisdiction. They are criminal and not administrative in nature.  Pursuant to sections 265
44

and 268 of the Omnibus Election Code, the power of the COMELEC is confined to the conduct of preliminary
investigation on the alleged election offenses for the purpose of prosecuting the alleged offenders before the
regular courts of justice. 45

There is grave abuse of discretion justifying the issuance of the writ of certiorari when there is such capricious
and whimsical exercise of judgment as is equivalent to lack of jurisdiction,  where power is exercised arbitrarily or
46

in a despotic manner by reason of passion, prejudice, or personal hostility amounting to an evasion of positive
duty, or to virtual refusal to perform the duty enjoined, or to act at all in contemplation of law, as where the power
is exercised in an arbitrary and despotic manner by reason of passion and hostility. 47

To our mind, the COMELEC gravely abused its discretion when it disqualified Gov. Javier based on a provision of
law that had already been expressly repealed. Its stubborn insistence that R.A. No. 7890 merely impliedly
repealed Section 261 (d) despite the clear wordings of the law, amounted to an arbitrary and whimsical exercise
of judgment.

WHEREFORE, premises considered, we hereby GRANT the petition and SET ASIDE the January 12, 2015 per

curiam order of the Commission on Elections en banc in SPA No. 13-254 (DC).

SO ORDERED.
GOV. EXEQUIEL B. JAVIER v. COMELEC, GR No. 215847, 2016-01-12
Facts:
On December 3, 1985, the Batasang Pambansa enacted the Omnibus Election Code (Election Code)
Coercion, as an election offense, is punishable by imprisonment of not less than one year but not more
than six years.[3] Notably, Section 68 of the Election Code provides that the Commission may
administratively disqualify a candidate who violates Section
261(d) or (e).
On February 20, 1995, Congress enacted Republic Act No. 7890 amending the definition of Grave
Coercion under the Revised Penal Code.[4] It increased the penalty for coercion committed in violation
of a person's right to suffrage... to prision mayor. Further, Section 3 of R.A. 7890 expressly repealed
Section 26, paragraphs (d)(l) and (2) of the Election Code.
On April 3, 2012, COMELEC issued Resolution No. 9385[5] fixing the calendar of activities for the May
2013 elections. The resolution set the election period from January 13, 2013 until June 12, 2013.
On September 3, 2012, Valderrama Municipal Vice-Mayor Christopher B. Maguad filed an
administrative complaint for Gross Misconduct/Dereliction of Duty and Abuse of Authority against
Valderrama Mayor Mary Joyce U. Roquero (Mayor Roquero). This complaint was docketed as
Administrative Case No. 05-2012.
On April 3, 2012, COMELEC issued Resolution No. 9385[5] fixing the calendar of activities for the May
2013 elections. The resolution set the election period from January 13, 2013 until June 12, 2013.
On September 3, 2012, Valderrama Municipal Vice-Mayor Christopher B. Maguad filed an
administrative complaint for Gross Misconduct/Dereliction of Duty and Abuse of Authority against
Valderrama Mayor Mary Joyce U. Roquero (Mayor Roquero).
On November 9, 2012, the Sangguniang Panlalawigan (SP) issued Resolution No. 291-2012
recommending to Antique Governor Exequiel Javier (Gov. Javier) the preventive suspension of Mayor
Roquero.
On November 21, 2012, Mayor Roquero filed a petition for certiorari and prohibition with prayer for the
issuance of a temporary restraining order (TRO) before the Regional Trial Court (RTC), Branch 12,
Antique, against Gov. Javier and the members of the SP... to restrain them from proceeding with
Administrative Case No. 05-2012.
On December 18, 2012, COMELEC issued Resolution No. 9581[6] prohibiting any public official from
suspending any elective provincial, city, municipal, or barangay officer during the election period for the
May 13, 2013 elections. This resolution... implements Section 261 (x)[7] of the Election Code.
On January 16, 2013, the RTC, Branch 11 promulgated its judgment granting certiorari and prohibition.
It ordered the SP to cease and desist from further proceeding with Administrative Case No. 05-2012. It
likewise ordered Gov. Javier to refrain from implementing SP
Resolution No. 291-2012 and from preventively suspending Mayor Roquero.
On January 23, 2013, Gov. Javier issued Executive Order No. 003, S. 2013, preventively suspending
Mayor Roquero for thirty (30) days.
On February 7, 2013, the SP of Antique issued a decision finding Mayor Roquero guilty of Grave
Misconduct in relation with Section 3(e) of R. A. 3019, the Anti-Graft and Corrupt Practices Act, and
Grave Abuse of Authority in relation with Section 5(e) of R.A. No.

6713. The SP suspended her for four (4) months.

Mayor Roquero filed an Election Offense complaint against Gov. Javier for violating Section 261(x) of
the Election Code.
Mayor Roquero filed an Election Offense complaint against Gov. Javier for violating Section 261(x) of
the Election Code
On March 22, 2013, private respondents Cornelio P. Aldon (Aldon) and Raymundo T. Roquero
(Roquero) also filed a petition for disqualification before the Commission against Gov. Javier, Vice-
Governor Rosie A. Dimamay, and the other members of the SP.
After the May 13, 2013 Elections, only Gov. Javier and SP Members Tobias M. Javier, Edgar D.
Denosta, Teopisto C. Estaris, Jr., and Victor R. Condez were proclaimed winners. Hence, the
Commission considered the disqualification cases against the losing candidates moot.
On October 3, 2014, the COMELEC Second Division issued a resolution in SPA No. 13-254 (DC)
disqualifying Gov. Javier and annulling his proclamation as the Governor of Antique. The resolution was
penned by Commissioner Elias R. Yusoph.
The COMELEC ruled that Gov. Javier's act of preventively suspending Mayor Roquero during the
election period ban fell within the contemplation of Section 261 (d) of the Election Code, which is a
ground for disqualification under Section 68. It held that while Section
261(d) of the Election Code was repealed by Republic Act No. 7890, it did not remove coercion "as a
ground per se for disqualification under [Section] 68." In fact, R.A. 7890 made Coercion (an election
offense) a felony with a higher penalty.[10] The
COMELEC added that the general repealing clause of R.A. No. 7890 cannot impliedly repeal Section
68 because the latter was "not absolutely and irreconcilably incompatible with Article 286."[11... the
Commission asserts that COMELEC Resolution No. 9581 fixing the date of the election period is
expressly authorized by Article IX, Section 9 of the Constitution and Section 8 of Republic Act No.
7056.
Issues:
Whether the Commission gravely abused its discretion when it issued Resolution No. 9581 fixing the
2013 election period from January 13, 2013 until June 12, 2013, for the purpose of determining
administrative and criminal liability for election offenses.
Whether the Commission en banc committed grave abuse of discretion in issuing its Order dated
January 12, 2015, disqualifying Gov. Javier and annulling his proclamation as the governor of Antique.
Ruling:
No less than the Constitution authorizes the Commission to fix the dates of the election period. Article
IX-C, Section 9 provides:
Section 9. Unless otherwise fixed by the Commission in special cases, the election period shall
commence ninety days before the day of election and shall end thirty days thereafter.[15]
Congress, through the Election Code, explicitly recognizes this authority:
Sec. 3. Election and campaign periods. - Unless otherwise fixed in special cases by the Commission on
Elections, which hereinafter shall be referred to as the Commission, the election period shall
commence ninety days before the day of the election and shall... end thirty days thereafter.[16]
(emphases supplied)
Evidently, the 120-day period is merely the default election period. The Commission is not precluded
from fixing the length and the starting date of the election period to ensure free, orderly, honest,
peaceful, and credible elections. This is not merely a statutory but a... constitutionally granted power of
the Commission.
The petitioner contends that the election period for the reckoning of administrative and criminal
liabilities under election laws should always be the same-90 days before and 30 days after an election-
fixed in Article IX-C, Section 9 of the Constitution and Section 8 of Republic
Act No. 7056.[14] He argues that the Commission's authority to fix the pre-election period refers only to
the period needed to properly administer and conduct orderly elections. The petitioner argues that by
extending the period for incurring criminal... liability beyond the 90-day period, the Commission
encroached on the legislature's prerogative to impute criminal and administrative liability on mala
prohibita acts. Therefore, COMELEC Resolution Nos. 9385 and 9581 were issued ultra vires.
We do not find this argument meritorious.
No less than the Constitution authorizes the Commission to fix the dates of the election period. Article
IX-C, Section 9 provides:
Section 9. Unless otherwise fixed by the Commission in special cases, the election period shall
commence ninety days before the day of election and shall end thirty days thereafter.[15]
Congress, through the Election Code, explicitly recognizes this authority:
Sec. 3. Election and campaign periods. - Unless otherwise fixed in special cases by the Commission on
Elections, which hereinafter shall be referred to as the Commission, the election period shall
commence ninety days before the day of the election and shall... end thirty days thereafter.[16]
(emphases supplied)
Evidently, the 120-day period is merely the default election period. The Commission is not precluded
from fixing the length and the starting date of the election period to ensure free, orderly, honest,
peaceful, and credible elections. This is not merely a statutory but a... constitutionally granted power of
the Commission.
Contrary to the petitioner's contention, the Commission's act of fixing the election period does not
amount to an encroachment on legislative prerogative. The Commission did not prescribe or define the
elements of election offenses. Congress already defined them through the
Omnibus Election Code, the Fair Elections Act, and other pertinent election laws.